This is an action for a declaratory judgment to test the constitutionality of the zoning ordinance of the Town of Pittsford, Monroe County, New York, insofar as it applies to the plaintiff's land in said town.

Prior to the trial of the action, a motion to dismiss was made on the ground that the plaintiff has no standing at this time to bring suit because it failed to exhaust the administrative remedies available to it under the ordinance. The motion is denied.

A zoning board of appeals has no power to determine the validity of the application of the ordinance to the plaintiff, which is what the plaintiff seeks (Anderson, Zoning Law and Practice in New York State, §§ 17.30, 21.07; Scarsdale Supply Co. v. Village of Scarsdale, 8 N.Y.2d 325; Vernon Park Realty v. City of Mount Vernon, 307 N. Y. 493; Dowsey v. Village of Kensington, 257 N. Y. 221; Western Stone Prods. Corp. v. Town Bd. of Town of Lockport, 25 A.D.2d 493).

Plaintiff's land, including both parcels "A" and "B", according to a recent survey, has a total area of about 6.74 acres of land of which 1.13 acres are located in the Village of Pittsford and approximately 1.25 acres are situated in the Town of Pittsford on which are located two large storage tanks, a pump, loading dock and a warehouse. Approximately 4.36 acres, being the remainder of the property, are presently undeveloped. The elongated, triangular shaped property is bounded on the north by the New York State Barge Canal, on the east by New York State Highway Route 31, or Monroe Avenue in said town, and on the south by the single-track West Shore Branch of the Penn Central Railroad.

Prior to 1953 the subject premises in the town were zoned "Industrial", according to Mr. Elliott, the Pittsford Town Clerk. In 1953 the 1929 ordinance was apparently amended, and the subject premises were zoned "A Residential", which classification or use was carried over into the present law adopted April 8, 1963. Thus since 1953, the subject property has been occupied and part of it has been operated as a nonconforming use.

The town concedes that for more than 30 years prior to plaintiff's acquisition of title on April 20, 1967, a portion of the premises had been used by Tidewater Oil Company and its affiliated companies for the storage and sale of fuel oil, and the premises have been so used continuously to the present time.

Shortly after plaintiff acquired title to the premises, on May 8, 1967 a verified petition was filed with the town which stated:

"Monoco Oil Co., Inc., a domestic corporation, with its principal office and place of business at Pittsford, New York, hereby petitions this Board for an amendment to the zoning ordinance of the Town of Pittsford, New York, changing the zoning classification of approximately 3 1/2 acres of property lying south of Monroe Avenue and adjacent to the village line of the Village of Pittsford and further bounded westerly by the canal and easterly by the New York Central Railroad in the Town of Pittsford, New York, from a residential district to a commercial district and that the appropriate public hearing for such purpose be held as required by law in connection with this request. "The property for which rezoning is sought is owned by Monoco Oil Co., Inc. and is more particularly described in an attached Schedule 'A'."

A public hearing was thereafter held by the defendants at which plaintiff made known its desire to have the zoning classification of its property changed from "A Residential" to "Commercial" under the 1963 ordinance then in effect.

The matter was referred to the Planning Board of the town and to the Monroe County Planning Commission for evaluation. Both of these bodies unanimously recommended that the zoning classification affecting the subject property be changed to "Commercial", which presumably would permit the expanded use of the property in the erection and operation of additional fuel oil storage tanks on the western part of the premises.

On October 10, 1967, the Town Board denied plaintiff's application for a variance.

Defendants contended on the opening motion and throughout the trial that plaintiff has not exhausted its administrative remedy, which defendants urge is a condition precedent before testing the constitutionality of this ordinance. Anderson, Zoning Law and Practice in New York State (§ 21.07, supra) contains an enlightening discussion of this premise.

It appears to me that an owner must exhaust his administrative remedy when the statute does not unreasonably deprive him of his property, if it is properly administered. In a case where a temporary and conditional permit was required (Incorporated Vil. of Upper Brookville v. Faraco, 282 App. Div. 943, affd. 307 N. Y. 642), or where an exception was built into the ordinance, "if approved by the Board of Appeals" (Rose v. City of New Rochelle, 19 Misc. 2d 599, 600), then I can see why a plaintiff should in such cases exhaust his administrative ...

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